www.elsblog.org - Bringing Data and Methods to Our Legal Madness

26 May 2006

White, Male SCOTUS Clerks

The Legal Times has a interesting story on the lack of ethnic and gender diversity among U.S. Supreme Court Law Clerks. The story draws heavily on the research of former ELS Guest Blogger, Todd Peppers, who participated in the "Law Clerks as Research Subjects" Forum back in March. Here is a worthwhile excerpt that deals with changes in hiring practices over time:

This is ... the first term in which clerks affected by the new federal
clerkship hiring plan have reached the Court. Under the plan, adopted
in 2002, appellate judges agreed they would no longer hire clerks after
their first year of law school but would wait until the start of their
third year. Some judges speculated that by giving law students another
year to blossom, more minority candidates could emerge. If so, it did
not result in more minority clerks at the Court. [Only three of thirty-seven this term are non-white.]

Todd Peppers, author of the new book "Courtiers of the Marble Palace,"
which takes a historical look at high court clerks, says none of the
possible explanations for low numbers of minorities is satisfying.
When, a few years ago, members of Congress asked why justices could not
cast their nets more widely to find more minority candidates, Peppers
recalls, the justices often fell back on the "questionable" excuse that
they could not afford to take chances that even one of their clerks
might not be a top performer.

That excuse is flawed, says Peppers, not only because of its unsavory
assumption that minority candidates are risky but also because of
history. Back when justices had fewer than four clerks each, he says,
some took chances in their hiring, "and it did not cripple the ship."

Alabamian Justice Hugo Black favored clerks from Southern law schools,
and he once announced to a startled candidate that he liked to hire
young students he could help. The candidate was a stutterer, and that
appealed to Black. Other justices, such as Lewis Powell Jr. and Felix
Frankfurter, also sought out a diversity of views among clerks, Peppers
says, resulting in, at least in Frankfurter's chambers, screaming
matches.

Peppers speculates that as the job of law clerk has become more intense
and formalized, justices may place a higher premium on technical
efficiency and less importance on diversity. Also, the cert pool, in
which clerks share the chore of summarizing incoming petitions for
eight of the nine justices, has made each individual clerk that much
more important. ... As a result, they tap the usual
sources -- top students at Harvard, Yale and a handful of other schools
-- and end up with very few minorities.

I am sorry, but I cannot resist just a little bit of editorializing here. Over time, I have really been won over to the diversity rationale--of all types, political, racial, socio-economic, gender, transnational, sexual preference, religious, age, military experience, geographic, etc. I learn by coherent argument; but also by listening to other people from different backgrounds who see things I overlook.

Frankly, I find it unfathomable that the Court is somehow seriously trading down in brain power if they break out the the top-the-class Top 5 law school mode and dip into the pool of the most highly qualified African American or Hispanic or Asian law clerks in the country (brilliant folks, no doubt). But it is obvious that if diversity has any value in judicial decision-making (especially at SCOTUS, where the Justices have considerable discretion), the Court is missing the boat.